Sunday, September 08, 2002

Labor Continuing to lean on Two Tears in a Bucket for my blogtopics, I'm going to talk about strikes and lockouts for a minute. The big news on the West coast docks, as discussed by the links compiled by Ann at Two Tears and also in this link courtesy of Nathan Newman is that the Administration is talking about sending in the military to scab if there's a strike.

So let's back up for a minute to talk about labor law, because this will then shed light on what the Administration is trying to do rhetorically.

When there is no current collective bargaining agreement in force, either side can use what we labor lawyers sometimes call the "economic weapons" in order to try to bend the other side to its will. The weapon in labor's arsenal is the strike: "We won't work for what you're offering! We're leaving en masse -- if you want us back, buckle." The weapon in management's arsenal is the lockout: "if you won't take what we're offering, then there's no work to be done here and no pay! Go home until you buckle!" There are lots of intricacies as to what precise tactics are permissible in given types of situations, but those are the outlines.

So, let's imagine that you are the President and you are sincerely neutral as between labor and management but you don't want any work stoppage -- neither strike nor lockout. Do you accomplish your sincerely neutral goal by preparing to send in the military to do the work on the docks? NO! First of all, that only addresses one side of the situation; it only deters a strike, and does nothing to deter a lockout. It treats labor as "the problem", not management. And notice -- reading the stories that Ann and Nathan have linked to -- that the party threatening to shut down the docks is Management, threatening a lockout. It is even conceivable that what will happen is that management will lockout the union-represented employees and THEN the Administration will send in the troops to scab. Unfathomably unfair, and unlawful -- but conceivable.

Second, if the President thinks that it's really necessary that the government halt a work stoppage in order to avoid a national emergency -- whether the work stoppage is a strike or a lockout -- he has the same legal tool at his disposal no matter whether it's a strike or a lockout: the provisions of 29 U.S.C. sec. 176 through 180. (Go here and scroll down to the part on national emergencies). I wouldn't like it if the Administration stopped a strike in that way. I wouldn't think it good policy or good law -- but such an order could put an end to a strike OR a lockout, at least long enough to get the parties to an agreement. And those sections of the statute specifically say that they can be used against either strikes or lockouts (if it's a real national emergency; if it's not, the government has to keep its nose out of the situation).

So why are we being told that the military is being prepared to scab? The worst case scenario is the one I mentioned above -- that it will be management that uses its economic weapon, the lockout, and rather than stopping it under the Taft-Hartley Act, the military actually steps in to help management in that. The best case scenario is that this is merely Karl Rove stuff: theater, designed to make us all believe that Labor is The Problem, that management's talk of a lockout is somehow fundamentally different from and better than rumblings about a strike or slowdown, and that the only people strong enough to stand up to a bunch of union thugs is the military. Either way, it's an outrage.

UPDATE: It occurs to me, after breakfast, that there's a third possibility as to why the military is being prepared to scab: that the Administration does not believe that a dock strike would actually come within the legal definition of a national emergency, in the sense relevant here -- thus making resort to the President's Taft-Hartley powers (discussed above) unavailable as a matter of law -- but the Administration wants to physically intervene in favor of management in this labor dispute anyway. It should go without saying that, if this is what they're up to, it's unlawful.

UPDATE UPDATE: It also occurs to me that I should say a little more to explain my assertion that sending in the military to do the scab work, after mgmt locks out the union-represented workers, would be grotesquely unfair. Part of the reason is that, in labor relations, each side's weapon is also somewhat painful to itself. This is what keeps the weapons from being overused and is what tends to bring the parties back to the table more quickly: a strike hurts the company, but it's also somewhat hard on the workers who are on strike, and a lockout hurts the workers but it also in various ways hurts the company that imposes it. If the President supplies scabs during a lockout, though, he's making management's weapon (the lockout) much stronger: it would hurt labor just as it would in the normal course, and (by virtue of the military intervention) would not have the usual backfire-effect on management (because work would continue thanks to the scabs). So, again, taking such action -- rather than the action that the law might arguably allow if federal intervention is warranted at all, which is to seek an injunction against a work stoppage under Taft-Hartley -- would be a radical intervention on the side of managment. We'll see if it happens.

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